In California, ineffective assistance of counsel claims are challenged in three areas: 1) trial counsel ineffectiveness  2) appellate counsel ineffectiveness  and, 3) plea counsel ineffectiveness. These areas of ineffectiveness contain common requirements. First, a defendant must prove that counsel’s representation fell below ordinary attorney representation. Second, the defendant must prove their case was harmed in some manner due to counsel’s conduct. The case of Strickland v. Washington, 104 S.Ct. 2052 (1984) provides excellent guidance when challenging any ineffectiveness claim.

The prejudicial component is what differs most between trial, appellate and plea counsel’s ineffectiveness. Generally, establishing trial counsel prejudice requires a defendant to prove that had counsel been effective, the outcome of the trial or sentence would have been different.

For appellate counsel, prejudice can be established by proving an attorney abandoned clearly stronger issues in comparison to issues which were presented in the appellate brief. The case of Smith v. Robbins, 120 S.Ct. 746 (2000) provides excellent guidance when challenging the ineffectiveness of appellate counsel.

For a defendant who entered into a plea agreement, the person usually must establish that had counsel been effective, the plea agreement wouldn’t have been accepted and the defendant would have instead proceeded to trial. The case of Hill v. Lockhart, 106 S.Ct. 366 (1985) provides excellent guidance when challenging the ineffectiveness of counsel surrounding the acceptance of a plea agreement.

Now, let’s identify where you can find the State’s requirements for challenging counsel’s ineffectiveness in each of these three areas.

Ineffective Assistance of Trial Counsel

For a criminal defendant in California to obtain relief on a claim of ineffective assistance of trial counsel, the petitioner must prove that: 1) counsel’s performance was deficient  and, 2) the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for counsel’s deficient performance. See: People v. Alexander, 235 P.3d 873 (Cal. 2010). The failure to satisfy either prong of the test is fatal to any ineffective assistance of counsel claim in California.

A reviewing court isn’t required to determine if counsel’s performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. If it is easier for the court to dispose of an ineffective assistance of counsel claim on the ground there is a lack of prejudice, the court may do so. See: In re Champion, 322 P.3d 50 (Cal. 2014).

Rarely will an ineffective assistance of counsel claim be established on appeal in California. This is because the record usually doesn’t shed any light on counsel’s reasons for action or inaction. Except in rare instances where there is no conceivable tactical purpose for counsel’s actions, claims of ineffective assistance of counsel generally must be raised in a petition for writ of habeas corpus. See: People v. Mendoza Tello, 933 P.2d 1134 (Cal. 1997).

Ineffective Assistance of Appellate Counsel

The California Supreme Court has set forth some of the specific duties which appointed appellate counsel must fulfill to meet his or her obligations as a competent advocate. These include the duty to prepare a legal brief containing citations to the appellate record and appropriate authority, and setting forth all arguable issues, and the further duty not to argue the case against his client. See: People v. Harris, 19 Cal. App. 4th 709 (1993).

A claim of ineffective assistance of appellate counsel should be presented in a State habeas proceeding. However, the habeas petition cannot serve as a second appeal. Claims which should have been or were raised on direct appeal will be barred from habeas review. See: In re Reno, 283 P.3d 1181 (Cal. 2012).

When analyzing the performance of appellate counsel, it’s important to recognize that an attorney is not required to argue every possible issue on appeal. An appellate attorney need not, and should not, raise every non-frivolous claim. Rather, counsel should consider all available issues and present the claims which maximize the likelihood of appellate success.

Ineffective Assistance of Plea Counsel

To establish ineffective assistance of plea counsel in California, the defendant must show that counsel’s performance was deficient and that counsel’s deficient performance caused prejudiced. The prejudice requirement can be satisfied by establishing that there is a reasonable probability that, but for counsel’s errors, he or she would not have pleaded guilty and would have insisted on going to trial. See: People v. Dillard, 8 Cal. App. 5th 657 (Cal. App. 2017).

To learn more about presenting an ineffective assistance of counsel claim, I encourage you to read my post titled, What is ineffective assistance of counsel?

What legal book helps present an ineffective assistance of counsel claim?

The Colossal Book of Criminal Citations has a complete section filled with case references to help a defendant support an ineffective assistance of counsel claim. There are also subsections providing case citations specific for trial, appellate, and post conviction relief counsel. With over 120 topically organized sections, nearly every defendant will find substantive case references to help identify and detail the acts or omissions wherein counsel may have performed deficiently.

The Colossal Book of Criminal Citations will also help a defendant before and during the criminal trial phase itself. Every criminal defendant should be active in their case’s progression and presentation. By becoming familiar with the many topics covered in this book, a defendant can ensure that counsel is functioning in an effective manner before a jury determination is ever rendered. Buy now